Legal Aid

“Legal aid is a service which the modern state owes to its citizens as a matter of principal.It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves.Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise.Indeed, the case for such protection is stronger than the case for any other form of protection.The State is not responsible for the outbreak of epidemics, for old age or economic crises.But the State is responsible for the law.That law again is made for the protection of all citizens, poor and rich alike.It is therefore the duty of the State to make its machinery work alike, for the rich and the poor.”

Dr E. J. Cohn, Legal Aid for the Poor, 1941.

“For half a century the legal aid scheme enabled those without means to sue and defend themselves in the courts.The scheme was not without faults: it led to the public financing of too many unmeritorious claims, and it bore hardly on privately funded defendants.But its cost was its undoing.In the years 1988 to 1996/7 expenditure on civil (and also criminal) legal aid was the fasted rising item of government expenditure overall.So, perhaps ironically, it fell to the New Labour government to restrain access to civil legal aid, seeking to substitute conditional fee agreement and certain forms of insurance.Despite determined efforts by Lord Woolf, to reduce the cost of civil litigation, and the introduction of admirable pro bono (gratuitous) scheme by solicitors and barristers, there must be concern that there now exists, once again, a large unmet need.”

Tom Bingham, Baron of Cornhill, former Senior Lord of Appeal in Ordinary, The Rule of Law, 2010

The cost of legal aid has risen considerably since it was first introduced in Scotland in 1424 and in England 70-years later. Even since theLegal Aid and Advice Act 1949, which set up what we now recognise as our modern legal aid system, the costs have risen enormously. It is true that some lawyers were (and still are) greedy - this is nothing peculiar to lawyers, it is a trait found in all walks of humanity. Costs have risen for two main reasons: first, people have been encouraged by successive governments to view themselves as entitled to things and to stand up for themselves. I don't suggest that this is a bad thing. So, people who believe that they have a right to something and are now more likely than ever to take legal action to protect themselves. Secondly, as the police become more efficient and have more resources at their fingertips so the rates of arrest and trial increase. It is worth noting that in the 1930s the Met Police followed a policy of refusing to take reports of certain thefts and would instead record missing items as lost. Also, it is worth noting that by the end of the last Labour government they had created more then 4,300 new criminal offences, according to the Times Online on the 14 March 2010.

We, as a society, have a choice that is similar to the choice facing us over health. We can protect our health service and ensure that when we are ill it is there to help us. We can protect legal aid and if we are falsely (or even correctly) accused of a crime or are injured by a negligent medic or run down by a car then when we find ourselves vulnerable there will be somebody there to help us. Or, we can simply follow the views of newspapers like the Daily Mail and say that everybody who gets legal aid is a scrounger and the lawyers are all greedy thieves and then when the finger of suspicion or blame points at us we can wake up and realise that there is nobody left to speak for us.

Comments

As with the NHS, it it not necessarily the right idea to hand over a blank cheque and assume that the people spending the money will do so responsibly. While I entirely agree that legal aid should be generally accessible, just as health care should be, I am not at all convinced that the system as it existed before Labour sold out to its friends in big companies is the best way of achieving that - in either case.

In other words, a plague on all their houses. The courageous thing to do would be to consider all aspects of the problem, not just how much money government is paying.

There is a corollary to the legal aid argument and that is the continued refusal of some lawyers to follow the Criminal Procedure Rules and who insist that the prosecution be put to proof. This in my opinion is an act of desperation when there is little or no defence to the charge. When the defendant is an immigrant with little English and a poor understanding of our legal system it is not difficult for a lawyer to persuade him to stand firm. Having said that the costs incurred by the increased court usage time with unrepresented defendants must have an effect on the proposed cost saving as indicated by government. Certainly legal expenses cover will no doubt be heavily promoted by insurance companies except those most in need will be unable to afford it or even consider it. Whether a comparison with "free at the point of need" concept of NHS delivery can be utilised in regard to legal aid is a moot point.

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